Bond v Hodgson
[2013] WASC 257
•12 JULY 2013
BOND -v- HODGSON [2013] WASC 257
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 257 | |
| Case No: | SJA:1126/2012 | 5 JULY 2013 | |
| Coram: | HALL J | 12/07/13 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | LEE GLENYSE BOND PAUL RICHARD HODGSON |
Catchwords: | Criminal law Appeal against conviction Speeding in a school zone Whether there was an error as to the time of the offence Whether the correct camera operator was called Whether there was any impropriety in witnesses remaining in court Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
PAUL RICHARD HODGSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M M FLYNN
File No : AR 1361 of 2012
Catchwords:
Criminal law - Appeal against conviction - Speeding in a school zone - Whether there was an error as to the time of the offence - Whether the correct camera operator was called - Whether there was any impropriety in witnesses remaining in court - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr P D Spragg
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
(Page 3)
- HALL J:
Introduction
1 On 20 September 2012 the appellant was convicted following a trial in the Armadale Magistrates Court on a charge of driving in excess of the speed limit in a school zone, contrary to s 11(6) of the Road Traffic Code 2000 (WA). She was fined $150 and ordered to pay costs. She now seeks leave to appeal against her conviction.
2 The appellant was self-represented both in the Magistrates Court and on appeal. Her grounds of appeal were short but cryptic. It became apparent at the hearing that her complaints were that there had been an error regarding the time of the incident, that the camera operator who gave evidence was not the operator who had been on duty at the time of the incident and that two witnesses had been permitted to be in court during the hearing in the Magistrates Court prior to giving their evidence.
3 For the reasons that follow none of the grounds of appeal has a reasonable prospect of succeeding. Accordingly, leave to appeal must be refused and the appeal dismissed.
The prosecution case
4 There are a number of schools adjacent to Forrest Road in Hilbert near Armadale. As a consequence, part of Forrest Road is designated as a school zone. This school zone is marked by signs both at the beginning and end and also by a number of other signs along its course. These signs state that the speed limit in the school zone is 40 km per hour between the hours of 7.30 am and 9.00 am and 2.30 pm and 4.00 pm on school days.
5 The fourth of November 2011 was a school day. On that day a police speed camera was set up on Forrest Road. It was alleged that at 2.36.56 pm the camera recorded a vehicle with a registration 1BGX 145 travelling at 59 km per hour in the 40 km zone. As the appellant was the registered owner of the vehicle a traffic infringement notice was sent to her.
6 On 25 November 2011 the appellant completed the traffic infringement notice by declaring that she was the driver of the vehicle at the time of the alleged offence but electing to have the matter dealt with by a court. The appellant then received a summons, appeared in the Magistrates Court and entered a plea of not guilty. After a number of adjournments the matter was listed for a hearing.
(Page 4)
Evidence at the trial
7 At the hearing the prosecution called the camera operator, Mr Phillip John Thirlwell. Mr Thirlwell gave evidence that he was authorised under s 88A of the Road Traffic Act 1974 (WA) to operate speed measuring equipment and had been certified by the Police Commissioner as being competent to operate the Vitronic Police Scan Speed M1 equipment. A notice from the Government Gazette was tendered which established that the Vitronic Police Scan Speed M1 was an approved laser apparatus for ascertaining the speed of a moving vehicle.
8 Mr Thirlwell said that he was on duty on 4 November 2011. On that day he conducted a velocity distance test on the Vitronic camera that he was using to confirm that it was operating correctly. Having done so he took the camera to Forrest Road in Hilbert. He then measured the lanes at the location and entered those measurements into the operational system of the camera. To ensure that those measurements were correct he caused the speed camera to take test photographs of vehicles in each lane. He then commenced enforcement at 2.35 pm. The location of the camera was within the school zone and was positioned so as to record vehicles travelling along Forrest Road within that zone.
9 Mr Thirlwell said that during the operation of the camera it detected a vehicle, later identified as that belonging to the appellant, travelling at 59 km per hour in the 40 km per hour zone. The time at which this occurred was 2.36.55 pm. The time was recorded on a photograph that was extracted from the camera. Mr Thirlwell produced the photograph and confirmed that it showed the appellant's vehicle at a location within the school zone at the time shown.
10 Mr Thirlwell gave evidence that he checked the time on the camera at 2.35 pm by comparing it with his own watch. He also conducted a time check at 2.46 pm by contacting VKI, the police communications operator. At that time he compared the time given by police communications with his own watch and the time shown on the speed camera and they all matched. He made a note of that time check at the time.
11 The prosecution also called Mr Michael Francis Margot. He is a public servant with the West Australian Police Service in the Infringement Management and Operations Section. He said that when a person has been allegedly photographed speeding a copy of the photograph is evaluated to ensure quality and identify the registration plate. From this the registered owner's details are obtained from a database and an
(Page 5)- infringement notice is prepared. That notice is then sent by post to the registered owner.
13 The appellant gave evidence in her defence. She accepted that she was the driver of the vehicle but disputed the time recorded by the camera. She said that she was aware of the school zones and always checked the clock in her car if she was anywhere near a school zone. The clock in her car was fast. At the time she believed it was fast by 10 minutes, though she later checked it and confirmed that it was 14 minutes fast. She said that she made an allowance for the clock being fast and was sure that she was not in the school zone after 2.30 pm.
14 The appellant was then asked the following questions by the magistrate:
All right. So do you recall checking the clock on this day?---Yes, always.
What did it say?---I was 14 minutes earlier than what the school zone said. So I was - - -
We'll come to that. What time did the clock say on your car?---The clock was 2.15, I think it was, or 2.17, but it definitely was not out of the - it would have been 2.14, 2.15.
You were saying before that in any event that was fast, or have you just adjusted it?---No, I didn't know that it was that early. I knew I always had 10 minutes up my sleeve on the clock at all times. It always has been 10 minutes fast, but - - -
So when you looked at it what were the - ignoring any adjustment, what did the digits say?---It would have been 20 past.
So it said 2.20?---Yeah.
And then you did a check at some point?---Yeah, I checked with the Greenwich time when - - -
When did you do that?---After I got the infringement.
All right?---That's how I found out it was 14 minutes and not 10.
(Page 6)
- So if You looked at a clock that said 2.20 on 4 November and it was 14 minutes fast, are you saying the true time was 2.06?---I would have thought that it was 2.20. I'd have thought that I was correct in thinking it was still the 10 minutes.
Okay?---I had no reason to believe anything else, because it was always 10 minutes fast.
But if you looked at your clock that was 14 minutes fast - - -?---Yes.
- - - and it was 2.20, what was the - - -?---Then it would have been 2.22 - it would have been just after - - -
It's 2.20 minus 14, isn't it?---Six.
Which is 2.06?---Yeah (ts 37 - 38).
15 The question of the time was also raised in cross-examination. The appellant gave the following evidence:
Okay. So you didn't check your watch at that particular time?---Just the clock, I checked it a half an hour before, and when I came out of Eighth Road I just looked at it and I was fine.
What time was it when you came out of Eighth Road?---When I came out of Eighth Road it would have been 20 past.
No, not 'would have been'. What time was it?---20 past on my clock.
20 past on your clock?---Mm (ts 42)
...
I take what you're saying, and what you said to his Honour, was that taking all the calculations that you've done, your clock was 2.06 on the day, correct time?---Yes, but I didn't know that at the time.
But that's what you're telling the court?---Well, I know now that's what it was, but I didn't know then (ts 43).
16 The appellant also called her husband to give evidence. Mr Bond said that he had driven along the road in question and said that he was unable to achieve a speed of 59 km per hour in the distance from which the appellant had turned into Forrest Road to the point at which she had been photographed.
The magistrate's decision
17 The magistrate gave oral reasons for his decision. He noted that it was not in dispute that the appellant was driving the vehicle at the relevant
(Page 7)- time. He also noted that the issues were whether the appellant was driving at 59 km per hour and whether the driving occurred at a time when the speed limit was 40 km per hour. His Honour referred to the evidence of Mr Thirlwell and said that he was satisfied beyond reasonable doubt based on that evidence that the appellant was travelling at 59 km per hour within the school zone at 2.36 pm.
The evidence of Ms Bond is to the effect that at about the time she entered that school zone she looked at the clock on her vehicle and the clock said 2.20. Her evidence is that that is her normal practice, to check whenever she is within half an hour of 2.30 to see the clock on her vehicle.
Her evidence is that sometime after she received the infringement notice, sometime later in November, she conducted a check of her vehicle clock and found that it was 14 minutes fast. She infers that the correct time then that she was travelling through the school zone was 14 minutes before 2.20; that is, at 2.06. The effect of Ms Bond's evidence is that she was travelling through the school zone exactly half an hour before the time that Mr Thirlwell says that he recorded the time of her vehicle.
The discrepancy is substantial. Bearing in mind Mr Thirlwell is employed for a specific task of measuring vehicle speeds and that it was a matter of importance to him to ensure that he commenced at the correct time, and bearing in mind Ms Bond's evidence that she did not recall specifically seeing a police camera present on that day but that she was giving evidence of her usual practice, and bearing in mind the extent of the discrepancy - a half an hour - I am satisfied that Ms Bond did not look at her clock on that day and see a time of 2.20.
It is, on my assessment of Mr Thirlwell's evidence, inconceivable that he would have commenced recording time a full half an hour before the school zone commenced. In other words, I am satisfied that he did look at his clock and that he did confirm the accuracy of his clock with police headquarters.
I must be careful. I do not resolve this case on whether or not I prefer Mr Thirlwell's evidence to Ms Bond's evidence. Even if I do not accept Ms Bond's evidence as to the time that she says she was travelling through, I still need to be satisfied beyond reasonable doubt that Ms Bond was travelling in that vicinity after 2.30 pm.
Reviewing Mr Thirlwell's evidence, his evidence as to the checks that he did or the time that he started his shift, to the checks that he did at the start of his shift, to the testing that he did upon arrival, and to the testing that he did with his watch with VKI and his watch in the courtroom today, I am satisfied beyond reasonable doubt that Ms Bond was travelling after
(Page 8)
2.30 pm in the school zone on the day alleged by the prosecution (ts 57 - 59).
Ground 1 - Timing
19 On the hearing of the appeal the appellant said that she made a mistake in her evidence at the trial. She said that in her evidence she had said that the time on the clock was 2.20 but she had meant to say '20 to'. On this basis she argued that the 14 minute discrepancy on her clock would place her on Forrest Road at the time of the photograph at 2.26; that is, four minutes before the school zone speed limit became operative.
20 The obvious difficulty with the appellant's argument is that in her evidence in the Magistrates Court she was asked several times about the time as shown by the figures on her clock in the car. She repeatedly referred to the time as being 2.20 or 20 past two. When questioned by the magistrate she confirmed that this meant that on the basis that her clock was 14 minutes fast, she was suggesting that the real time she was photographed was 2.06 pm. This evidence left no room for any possible mistake.
21 In any event, on the hearing of the appeal, the appellant confirmed that the clock in her car was a digital clock and that if the time that she was travelling through the school zone was 20 to three, it would have shown 2.40 (or 14.40 if it was a 24 hour clock). When asked what her actual recollection of the figures shown on the clock were, she said that she did not recall seeing the figures 2.40, but, nonetheless maintains a belief that that was the time. It would seem that there is no evidential basis for this belief, rather it is a reconstruction of events after the event.
22 There is no basis for suggesting that the evidence given by the appellant to the magistrate was an error. There is nothing in that evidence that suggests it was a slip or an inadvertent error, to the contrary. What has occurred is that the appellant now wishes to change her evidence. Such a change cannot be permitted. In any event, as the magistrate found, the evidence of Mr Thirlwell was clear and persuasive.
23 This ground is not reasonably arguable and leave in respect of it will be refused.
Ground 2
24 At the hearing of the appeal the appellant submitted that there were reasons to believe that Mr Thirlwell was not in fact the operator who had been on duty at the relevant time. The appellant said that her belief in this
(Page 9)- regard was based on the fact that the trial in the Magistrates Court had been deferred on a previous occasion due to the unavailability of a witness. She said that when she asked an orderly in the Magistrates Court the name of the unavailable witness she was told a name different from that of Mr Thirlwell. This claim is unsupported by any sworn evidence.
25 The appellant also says that evidence given by Mr Thirlwell indicates that he was not the relevant operator. In particular, the appellant relies on the fact that Mr Thirlwell was unable to recognise photographs of the area when they were put to him in cross-examination.
26 This ground is completely without merit. Mr Thirlwell gave evidence on oath that he was the operator on duty on the relevant day. It was not put to him in cross-examination that he was being untruthful in this regard and that some other operator was in fact on duty.
27 When asked about his familiarity with the area, Mr Thirlwell said that he was very familiar with it having set up a camera at that location on many occasions. The photographs shown to Mr Thirlwell in cross-examination were produced by the appellant. He said that he did not recognise the area depicted. The photographs were marked for identification but never formally proven in evidence. Accordingly, whether or not they in fact depict the part of Forrest Road where the camera was located was never established.
28 Leave in respect of this ground must be refused.
Ground 3
29 The appellant submitted that at the commencement of the trial in the Magistrates Court the first two witnesses, being Mr Thirlwell and Mr Margot, remained in court until they were each called to give evidence. She assumed that there must be some impropriety in this.
30 Proceedings must occur in open court unless a law, rule or order is made to the contrary. An order may be made requiring witnesses other than the accused to leave the courtroom and to remain out of hearing of the courtroom until they are called to give evidence: s 171(3) of the Criminal Procedure Act 2004 (WA). No such order was made in this case. Accordingly, there was no requirement for Mr Thirlwell and Mr Margot to leave the room.
31 In any event, the reason why orders for witnesses to remain out of the court until they give evidence are made is to ensure the fairness of the
(Page 10)- proceedings. Such orders are appropriate where there may be a risk that witnesses will vary their evidence to conform with each other or amend their evidence to accommodate difficulties that may have been exposed in cross-examination. There is no basis for a suggestion that any such risk existed in this case. Mr Thirlwell was called as the first witness. He did not hear any other witness' evidence before he gave evidence. Mr Margot's evidence related only to the procedure that was followed in preparing an infringement notice from a photograph taken by a speed camera. If Mr Margot was in the courtroom when Mr Thirlwell was giving his evidence, no objection was taken to that by the appellant. In any event, no miscarriage of justice could possibly have arisen from Mr Margot's presence in the court given the nature of his evidence.
32 Leave to appeal in respect of ground 3 must be refused.
Conclusion
33 Leave to appeal is required in respect of each ground of appeal. The court must not give leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding. Unless the court gives leave to appeal on at least one ground the appeal is taken to have been dismissed: s 9 Criminal Appeals Act 2004 (WA).
34 In this case none of the grounds has any reasonable prospect of succeeding. Leave in respect of the grounds must be refused and the appeal dismissed.
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